Monday, August 2, 2010

Translation: "Torture in China: Fact or Fiction?"

New rules on the use of evidence in criminal trials in China took effect on July 1, including standards for exclusion of statements made by suspects or witnesses under coercion or torture. The rules have been widely praised as an important step in the right direction, though not without concerns about how fully they will be implemented. Some of these concerns have been raised by Chinese criminal defense lawyers, a number of whom have firsthand experience in trying to get allegations of torture taken seriously by the judicial system.

Chen Youxi is such a lawyer, and one with nearly 15 years’ experience working within the criminal justice system of his native Zhejiang Province. Chen has, since becoming a lawyer in 1999, made a name for himself as a criminal defense attorney unafraid to lock horns with judges in defense of a client. Earlier this year, he defended Li Zhuang—himself a defense attorney—who had been accused of urging his client to “fabricate evidence” in a high-profile organized-crime trial by recanting a confession on the grounds that it had been extracted through torture.

In a June 16 post on his blog (translated below), Chen Youxi asks why allegations of torture are so rarely acknowledged in China’s criminal justice system; such a question is only becoming more common, given the suspicious deaths in detention—likely due to torture—that have been publicly reported. Chen concludes that a general presumption of guilt for criminal suspects—combined with lack of transparency in the criminal investigation process, procedural norms favoring the prosecution, and an insufficiently independent media—have led to a situation where it is difficult from the outside to determine whether torture in China is common (as many lawyers allege) or rare (as authorities often claim).

*

Torture in China: Fact or Fiction?

Why do all court verdicts completely deny the existence of confessions coerced through torture?Why does every case of injustice always involve torture?Are the courts deaf and blind or are lawyers insolent?

Chen YouxiJune 16, 2010

There’s an exceedingly strange but common phenomenon in China’s current judicial system: courts’ criminal verdicts consistently reject claims of confessions extracted through torture made by lawyers and defendants, saying “no evidence was found.” Even in the case of Liu Yong, who was tortured until his leg was broken, the high court merely wrote timidly that “the confession could not be accepted [as evidence] because violations of the Criminal Procedure Law could not be ruled out” and sentenced him to a suspended death sentence. But this was then immediately changed to the death penalty after review by the Supreme [People’s] Court, and torture was never spoken of again.

Coercion of confession by torture is always carried out in a sealed environment. Three, four—even 10 or more—authorities take turns against a suspect, so it’s impossible to have “ironclad evidence” of torture. Only in cases of injustice like those of Zhao Zuohai or She Xianglin, where the “dead return home” and “admit to murder” there and then, will there be an investigation into false confessions and discovery of inhuman torture.This is because:

1. The suspect’s credibility has been denied, and the public won’t believe the claims of a “criminal.” Are you going to believe a criminal or believe the public security bureau and procuratorate?

2. The people carrying out torture won’t report themselves; on the contrary, they’ll join together and insist that no coercion of confessions through torture took place.

3. In China, a person who makes accusations in court can be “returned for [additional] investigation.” If [a defendant] makes accusations [of torture] in court, he or she can be sent back into the hands of the torturers, who can seek a [more] “solid confession” and then return [the case] for prosecution. This kind of “returning to the oven” is even more terrible, but China’s courts cooperate with the procuratorate and public security in these kinds of “re-investigations,” so many people don’t dare make allegations in court. And once you’ve admitted the charges in open court, there’s no possibility for this case of injustice to be overturned. It’s no use to file a petition, because the court will say: “This court didn’t beat or coerce you, so why did you admit the charges in open court? That shows you really did it.”

4. The public can never see the places where torture is committed, so it’s impossible to have eyewitnesses. “Turncoat” guards who give testimony to a lawyer that they witnessed torture would either lose their jobs or be prosecuted for “false accusation.”

5. Torture techniques have improved and interrogators are smarter, so there’s less physical abuse and more use of psychological abuse that leaves no scars or physical evidence. They can have a “wheel war” or prevent you from sleeping for nine days and nine nights or shine a big light bulb on you or strip you and spray you with cold water or pour pepper water down your throat—none of which leave any trace. Examination by an expert is no use.

6. If there are scars, there’s no worry. The court won’t agree to an examination by an expert and will pay them no heed. The judge will rule [the scars] to be the result of the defendant “playing blind man’s bluff” or “falling out of a tree when younger” or “a bump while on holiday in Hainan.” If there are wounds after a recent beating, [the authorities] can put [the suspect] in isolation and prevent him or her from meeting with a lawyer or can “state secret-ize” the case and “refuse to approve” a meeting for six months and wait until the scars are healed before letting the lawyer meet again.

7. Our media can be controlled, such that no one dares expose the dark side. If you don’t follow the main tune in reporting and publicly damage the image of law enforcement, the chief editor can be removed and the reporter fired. So the image is one of “strictly abiding by the law.” With 60 years of accumulated experience and protected by China’s present Criminal Procedure Law, “coercion of confessions by torture” in China is thus “harmonized” and wrapped up ever so tightly.

This is why 100 percent of Chinese criminal defense lawyers believe coercion of confession by torture is extremely serious in China, while the vast majority of the public, including high-level officials in charge of law enforcement, don’t really believe that torture is such a serious problem in China. I’ve defended some law-enforcement officials, all of whom come to realize this truth only after themselves getting into trouble and being subjected to interrogation. But they can no longer return to their position of authority, and no one will believe what they say. They can have no more influence on China’s judicial system.

This is the truth about coercion of confessions through torture in China. Is torture in China fact or fiction? Actually, everyone’s clear about this. Folks have no way of knowing [the truth] because of the asymmetry of information. But as soon as a family member gets in trouble, it usually becomes clear right away. Actually, there’s no need to be depressed: all we lack is an environment in which the truth can be spoken and a legal spirit that seeks truth from facts.